That Tweet that has been making the rounds, and maybe even gone viral, should be fair game, right? Everyone has been retweeting it, so embedding the original tweet into my website isn’t hurting anyone…riiiight? Well, not so fast. The answer may depend on where the case is heard.
Katherine B. Forrest, a U.S. District Judge for the Southern District of New York, recently issued an interesting order on this issue. Seems that Breitbart News Network, Yahoo, and a number of other online news outlets failed in making the same argument.
It seems that they all embedded a tweet (which had gone viral) into their own online websites. The tweet included a photograph of Tom Brady taken by Justin Goldman, and originally posted by him to Snapchat.
The photograph caught fire and several users uploaded it to Twitter, and eventually landed on the news websites. Goldman argues that he never publicly released or licensed the photograph, so he’s suing for infringement of his exclusive copyrights in the image.
The news outlets claim that they never actually downloaded or copied the photograph because it technically remained housed on the Twitter servers, linked through the embedding code on their own websites.
In what some have labelled a “surprising” decision, Judge Forrest set aside the 9th Circuit’s “Server Test”, which would determine infringement based upon whether an image is hosted on the alleged infringer’s server. Rather, she granted partial summary judgment to Goldman, holding that the fact that the image was never stored on the news websites’ servers was not dispositive.
Judge Forrest did leave the issue open as to whether the news outlets had raised effective defenses against infringement—citing potential arguments under fair use, the Digital Millennium Copyright Act and innocent infringement theories.
In reaching her decision, Judge Forrest examined the exclusive right to display the photograph (as opposed to copy or make a derivative work) granted to Goldman under the Copyright Act of 1976. Her opinion delves into a history of the right to display and the fact the drafters of the Copyright Act wanted it to encompass “new, and not yet understood, technologies,” such as Twitter.
Her decision also references a 10th Circuit decision, out of the U.S. District Court for the District of Colorado, which came to a different result. In Colorado, the District Court has (at least for the time being) applied the “Server Test” to a similar case.
In the 2016 Grady v. Iacullo decision, the Court held that, when a website includes a hyperlink to a copyrighted work, a copy has been created and infringement may have occurred. “transferring a copyrighted work into a computer’s RAM can create a copy under the Copyright Act.” However, the court requested that additional information be provided to it by the parties and a final ruling has not been made.
While final rulings and appeals are yet to be announced, beware the shifting sands of technology…embedding another’s image in your website may be more trouble than it’s worth.
If you have questions about this or any other copyright or licensing issue, contact our Arts & Entertainment attorney Caroline Kert at firstname.lastname@example.org or 303-763-1615.
Copyright is a type of intellectual property that protects “original works of authorship.”
Literary works (poetry, novels, newspaper articles), musical works (songs and their lyrics, orchestral compositions, movie scores), dramatic works (films, plays) and visual arts (paintings, prints, comics, sculptures) easily come to mind when thinking of works that probably have copyright protection.
However, copyright can be a lot broader! U.S. law allows you to claim copyright in software, architecture, fictional characters (for example, Superman), pantomimes and even your business’s logo. Online, the contents of a website or blog, including its text, graphics and videos, can also have copyright protection.
This broad nature of copyright is no accident. The Copyright Act acknowledges that future technologies may create new kinds of content that can be protected. When the founding fathers provided for copyright in the U.S. Constitution more than 200 years ago, they surely could not fathom billion-dollar superhero movie franchises or the Internet!
So, instead of providing an exhaustive list of things that can have copyright, the law simply establishes certain elements that must be met for a work to have copyright protection.
Elements of Copyright
To be copyrightable, a work must:
- Contain a minimal degree of creativity
- Be created by a human author
The recent case of Naruto v. Slater confirmed animals are not afforded rights under U.S. copyright law. This ruling meant “Naruto”, a crested macaque monkey who took a charming and commercially-viable selfie, could not sue to own the copyright of the photograph.
- And be fixed in a tangible medium
The work has to be captured in a way to that it can be perceived, reproduced, or communicated for more than a short time.
Copyright protection in the U.S. exists automatically from the moment the original work of authorship is fixed. You do not have to register the copyright, print a copyright notice on the item, or publish the work to have copyright protection!
(But read more about why you should register your copyrights in our blog post here.)
Exceptions to Copyright
Copyright does not protect ideas, procedures, systems or methods of operation.
Copyright also does not protect facts and mechanical, clerical content (for example, a phone book).
Copyright does not protect simple, short phrases. If you wrote a pop song with only one lyric – “Baby, I really love you…” – you probably wouldn’t be able to copyright this phrase and prevent other songwriters from authoring similar sentiments.
Copyright also does not protect content authored by the U.S. Government. Thus, you can freely quote federal governmental reports, publications, websites and laws. Be careful though! This exception is not true for other governments, such as the U.K.
If you have questions about copyright law, how to register your works with the U.S. Copyright Office, or what to do if you think someone is violating your copyrights, contact our Intellectual Property team today.
 15-CV-04324-WHO (N.D. Cal. Jan. 28, 2016).
Photo Credit: Kelli Tungay on Unsplash
A good website for your business can be an invaluable marketing tool. However, if you’re not careful, you could get into trouble for using images, photos, videos and other content in violation of copyright law.
Rights Granted under Copyright
Under the U.S. Copyright Act, the owner of a creative work is granted certain rights, including the right to prevent others from reproducing or copying their work, publicly displaying their work, or distributing their work.
Posting copyrighted material, say, a photograph, on your website arguably violates all these rights! Moreover, your Internet service provider (ISP) can also be found liable for copyright infringement, even if they played no part in designing or maintaining your website.
All small business owners must therefore be extremely careful about what goes on their website!
Even big companies with sophisticated marketing campaigns get into trouble. In May 2017, world-renowned luxury brand Tiffany & Co. was sued by photojournalist Peter Gould for using his photograph in an ad campaign for a line of jewelry designed by Elsa Peretti. The photo at issue was a shot of Ms. Peretti back in the day. The case was quickly settled and dismissed in July 2017, presumably because Tiffany’s agreed to write a nice fat check to Gould.
Tiffany certainly had the deep pockets to quickly deal with the lawsuit and settle, but your small business may not have these kinds of resources.
As a general rule, we tell our clients to assume any content they may want to use for their website, brochure, promotional video or other project is protected by either copyright or trademark law unless they can confirm otherwise. A work is not in the public domain simply because you found it up on the Internet already (a common misconception) or because it lacks a copyright notice (another misconception). Just because you are a local small business with not a lot of revenue and not a great understanding of copyright law does not mean you can claim “fair use” for the content either. There are no safe harbors in the Copyright Act if you just made a mistake or misunderstood.
Finally, be aware: If you do see an image or video is affixed with a copyright notice (or “copyright management information“) and choose to remove the info and use it anyway, this makes you liable for additional statutory damages under copyright laws.
Statutory damages range from a few hundred dollars to $25,000 per violation, meaning a mistaken infringement on your website can cost you a lot.
Investigate Infringement Claims Promptly
If someone complains about an unauthorized use on your website, remove the offending material at once and begin to investigate the claim immediately. If necessary, consult with an attorney on how to handle the investigation and how to respond to the claimant appropriately.
You may find after your research that your use is perfectly legal. However, you should remove the material while you investigate in order to limit your possible damages should the claimant file a lawsuit. Continuing to use the infringing material after receiving notice will increase the chances of you being found liable and increase the amount of damages you may have to pay.
Removal of infringing material is also an element of the Digital Millennium Copyright Act (DMCA), a 1998 law establishing that an ISP can avoid liability by following certain rules, including speedy removal of infringing material. Thus, if you don’t stay on top of copyright infringement complaints about your website, your ISP may get dragged into your mess as well.
Don’t let your dad who wanted you to major in business administration tell you otherwise – In today’s economy, making a living as an artist is probably more viable than it has ever been before.
Many individuals (including your dad) are under the impression that the only way to succeed in the arts is to become a superstar. Media representations tend to present the arts as an all-or-nothing proposition, with the spotlight only given to the celebrity successes.
However, a viable career in the arts can encompass a broad range of options for those of us who aren’t necessarily nobodies, but whose lives aren’t fodder for PerezHilton.com either. The arts are not a competition, and you don’t need to be a superstar to make a living doing what you love!
Here are some key points, some legal but many non-legal, we try to relay to our artist and creative entrepreneur clients:
- Identify and Maximize Various Revenue Streams
It can’t be denied that those working in creative professions often lack traditional benefits and job security. There is nothing in this post that offers solutions towards finding a tradition 9-to-5-with-health-insurance job in the arts. Instead, those who are able to pursue multiple sources of income and become comfortable (or even thrive) with a lifestyle with no promises of a paycheck can find career sustainability.
Experimenting with a variety of moneymaking options allows artists to discover which methods are the most lucrative. Here in Colorado, we unfortunately do not have a long-established art collector scene like on the coasts. However, traditional gallery art sales and online art sales may be complemented by speaking gigs, public art commissions, publishing, teaching, commission projects, crowdfunding and grants.
In other words, we believe it is a good investment for artists just beginning to establish their careers (but also for those looking to give a boost to current careers) to participate a little in a lot. If one revenue stream (for example, gallery sales) is not doing so well, you ideally should have multiple other sources of income to fall back on. The downside is that your schedule may be very full. The potential upside after several years of pursuing all options is that you’ve found something that really works for your medium, personality, lifestyle and business model, and you have found financial security.
- Be Weird
Being “weird” could be a bad idea at a lot of jobs, but it is definitely an asset in the creative professions. To sell art or become known as an artist, it helps to grab your audiences’ attention by creating works that are distinctly different from what is already out there.
Moreover, artists who devote time beyond their actual artwork to create a unique brand around themselves will likely have more opportunities to engage in various projects and receive more invitations to work, speak, sell and teach (all towards, see above, diversifying income streams!). Individuals who succeed in branding themselves aren’t necessarily the most talented and brilliant artists out there, but they do produce more bankable work. Navigating the fine line of being your authentic self yet making an impression on those around you can be tricky, but finding that balance can yield profitable results.
- Be Professional
Passion, talent and weirdness aren’t the only qualifications for becoming a successful professional artist. A creative individual pursuing a career in the arts should also be able to successfully navigate the business side of their own enterprise.
For example, grants can be a good source of income for an artist or arts organization. There are even some arts grants where, if you’ve received it once and demonstrated you were able to meet the objectives of the grant program, you can receive the same grant several years in a row.
However, groups that award such grants want to ensure their money is going to be used appropriately. They require clear and straightforward descriptions of how the grant funds will be used, and they also need assurances that the funds will be properly accounted for once received. This kind of due diligence is legally required for most of the foundations, endowments, 501(c)(3)s, and other organizations who are in the business of making arts grants.
If you never know the balance of your bank account or choose a casual attitude towards the financial aspects of your business, this is trouble! It is critical to establish, and continually maintain, a high level of professionalism in your arts business. Certain actions that can go a long way include:
- Setting yourself up as a legal business entity with a separate business tax ID (an EIN);
- Having separate business bank accounts;
- Staying on top of deadlines and document requests from grant organizations, vendors, and other collaborators or colleagues;
- Recognizing and protecting your intellectual assets (copyrights and trademarks);
- Having a good professional services contract when you are hired for projects, shows, etc.;
- Maintaining an active and professional online presence (social media and your website); and
- Sustaining a solid network of mentors, colleagues, and professional advisors such as accountants and attorneys who are on your team as you navigate your career in the arts.
In the last blog post, we discussed Katy Perry’s attempts to secure a trademark in “Left Shark” and a design image of a shark. That discussion focused on trademark, which protects phrases and images that identify and distinguish a source of goods or services. Copyright, on the other hand, protects works of authorship, such as drawings, songs, musical recordings, or books.
Cease and Desist Letter
Florida-based artist Fernando Sosa markets himself as “Political Sculptor,” [http://politicalsculptor.com/] and creates irreverent 3D-printed figurines inspired by current events and world politics. Immediately after Katy’s halftime show, Fernando began selling Left Shark figurines. On February 3 (the Super Bowl took place on February 1), Katy’s legal team sent Fernando a Cease and Desist letter asserting that he was violating Katy’s rights under U.S. copyright law. They also sent a takedown notice to Shapeways, the website selling Fernando’s figurines, and Left Shark was promptly removed from the site. Fernando decided to make the fight public, explaining on his blog: “Usually when it comes to small business owners, when the lawyers come after you the outcome is usually pretty predictable. I decided to finally take a stand and break the usual cycle of rolling over or giving into legal threats.” He engaged the services of a prominent intellectual property attorney, NYU Law Professor Christopher Sprigman, to respond to Katy’s lawyers. Fernando also shared the electronic files online so that anyone with a 3D printer would be able to create their very own Left Shark sculptures.
Cease and Desist Responses
Professor Sprigman’s response letters brought up two points of copyright law. First, under U.S. copyright law, costumes and clothes are generally not copyrightable. He asked Katy’s lawyers to explain why the Left Shark costume should be treated any differently. He also questioned whether Katy Perry actually was the author of any Left Shark works of authorship, citing to Katy’s interview in Elle magazine where she explained: In my show, I am boss daddy. I am boss mommy. They call me Boss. Everything goes through my eyes; I call all the shots, 100 percent of it. With the NFL, I have to be accountable to several levels of red tape. There are many committees I have to go through for my costumes, the budgets of my show, every interview – everything, I have to report to somebody. So I am no longer the boss; I have to relinquish that control.” The Copyright Act requires all transfers of copyright ownership to be in writing. [https://www.law.cornell.edu/uscode/text/17/204] Thus, Professor Sprigman brought up a cogent point that the Left Shark design may belong to another individual or the NFL. Katy’s lawyers answered Professor Sprigman’s first point by explaining that Katy’s team created multiple shark drawings in the process of designing the costumes, and those were copyrightable. They also explained that “multiple elements” within the costume itself were copyrightable, though did not explain specifically which elements these were. Katy’s lawyers also quickly asserted that Katy did, “pursuant to the terms of multiple agreements,” own all relevant copyrights to her dancing sharks.
After receiving Professor Sprigman’s first letter, Katy’s legal team asserted in addition to copyright infringement claims, they would also bring claims under unfair competition law, because “it is clear that any commercial value that your client’s sculptures have derives solely from the public’s association of them with Ms. Perry.” Unfair competition is a set tort claims that can be brought against a party that causes an economic injury to a business through a deceptive or wrongful business practice. In the intellectual property context, unfair competition often is an accompanying claim to trademark infringement and the attempt to use an already-established name, logo, or other identifying characteristic to deceive consumers into thinking that they are buying the product of a competitor.
“Left Shark Belongs to Us All”
In the last exchange between Professor Sprigman and the Katy’s lawyers, the professor made a salient point about the collective capabilities of the Internet: “No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. [The Internet] gave Left Shark his name, and then made him into a meme. Left Shark isn’t really about Katy Perry.” In April 2015, Fernando retained a new attorney in Florida to continue work on his instinctual property infringement/unfair competition case with Katy Perry but, as of the date of this writing, any new developments between the two have yet to be publicly shared.
Photo taken by ShoreShot Photography